As is the case for most lawsuits, estate litigation must be commenced in a timely fashion – if a claim is brought too late, it may well be statute-barred. Typically, claims against an estate must be initiated within two years of the deceased’s death: see subsections 38(2) and (3) of the Trustee Act, RSO 1990, c T.23. However, in Ingram v. Charron, 2023 ONSC 4188, an unreported decision released last month, Justice Dawe held that a 10-year limitation period applied to a claim against an estate. Since the applicant claimed an interest in real property on the basis of a constructive trust, the court held that the claim was subject to the Real Property Limitations Act, RSO 1990, c L.15 [the “RPLA”], rather than the Trustee Act.
By way of background, the deceased in this case did not provide for the applicant in his will, even though she was his common law spouse for the last 18 years of his life. Four years after his death, the applicant brought a claim for dependant support against the estate under Part V of the Succession Law Reform Act, RSO 1990, c S.26, and also claimed that she was entitled to an equitable interest in the estate by virtue of both constructive trust and resulting trust. More specifically, the applicant claimed that the estate had been unjustly enriched during the deceased’s lifetime, since he was able to rent out his home while residing with her. By the time she brought her claim, the deceased’s home had been sold and the sale proceeds had been distributed amongst the beneficiaries of the estate.
In light of how much time had passed before the applicant commenced her claim, the estate trustee applied to the court to determine whether her claim was statute-barred. The court permitted both claims to proceed.
The claim for dependant support was not barred since the entire estate had not been distributed when the applicant first brought her application. With respect to the equitable claim, Justice Dawe followed the Court of Appeal’s decision in McConnell v Huxtable, 2014 ONCA 86,confirming that a claim seeking a remedial constructive trust based on unjust enrichment is an action to recover land within the meaning of section 4 of the RPLA. The applicant’s claim was also not affected by the fact that the property had already been sold. Justice Dawe cited the Court of Appeal’s more recent decision in Studley v. Studley, 2022 ONCA 810, for the principle that a “tenable trust claim in land, one that would be sheltered by s. 4 of the RPLA, cannot be defeated by the sale of that land.”
The estate trustee did argue that McConnell should not apply to estate litigation, asserting that it would prevent estate assets from being distributed for 10 years. While the court acknowledged that there was “some force” in this argument, Justice Dawe ultimately concluded that the 10-year limitation period in the RPLA does apply to estate litigation, following the court’s decision in Wilkinson v The Estate of Linda Robinson, 2020 ONSC 91, a case we blogged about here. In light of horizontal stare decisis, Justice Dawe found that she was obligated to follow the court’s decision in Wilkinson as a matter of judicial comity. However, Justice Dawe also supported her decision that section 4 of the RPLA applies to estate litigation by considering the express wording of both subsections 38(2) and (3) of the Trustee Act and section 4 of the RPLA.
In light of Justice Dawe’s decision, it appears that unless this issue is addressed by either the Court of Appeal or the legislature, the RPLA will continue to apply to estate litigation, even if a claim is not commenced until after the land is sold.
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